Hundreds of asylum seekers who are detained in UK immigration centres could be released after a high court judge ordered the government to review its policy on incarcerated torture survivors.

Learning to give

Read more

Justice Duncan Ouseley ruled on Monday that the Home Office must immediately provide “relief” to detainees at an interim hearing, releasing survivors of torture from countries such as Afghanistan, Nigeria and Sri Lanka.

Human rights lawyers, representing an initial 20 cases, had launched a legal challenge against the Home Office’s new definition of “torture” introduced in September, arguing that an unreasonably strict interpretation of the word meant that “potentially hundreds” of people have been illegally detained after claiming asylum in the UK.

The Home Office accepts that asylum seekers who have survived torture should only be detained in exceptional circumstances. Its definition had previously included any act of torture by any individual or group – but it was redefined to refer to torture carried out by official state agents only.

It is believed several hundred asylum seekers from the Middle East and Africa said they had been been tortured but are unable to prove their suffering was sanctioned by their country of origin, and have therefore been detained while claiming asylum in the UK.

Examples of detained asylum seekers referenced in court on Monday include an Afghan man in his early 20s who was reportedly kidnapped and tortured by the Taliban because he refused to be groomed into joining them. The Afghan man was beaten with knives, sticks and a gun, and the court heard his injuries are consistent with his account. Last month the Home Office told him his case did not meet the new definition of torture.

In another case, a Nepalese man said he was beaten, cut and and shot by a terrorist group in his home country. His ordeal is said to have lasted 15 days and he has scars consistent with his account but, again, his case was not held to meet the new definition.

In his conclusion, Mr Justice Ouseley expressed concern that under the new policy a number of decisions had been reached unlawfully, concluding that “I should grant interim relief in the form [requested by lawyers for the claimants]”. Ousely went on to confirm the Home Office would revert back to its previous broader definition of torture while the legal challenge continues.

A full hearing on the Home Office policy is scheduled for early next year but legal experts said that in the interim hundreds of asylum seekers would have to be released from immigration centres.

Ouseley ruled that pending trial, references to “torture” should be taken to mean “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind”.

During the hearing, the Home Office also said independently of the legal challenge that it is reviewing 340 cases identified between 12 September and 18 November, where people who claim to have been tortured may have been wrongly detained.

If they are deemed to be survivors of torture under the old definition, they will be released. Human rights lawyers say they have also identified other cases of detainees who they say have been tortured and who should be immediately released.

Toufique Hossain, director of public law at Duncan Lewis which brought Monday’s challenge, welcomed the ruling. “We know from NGO groups and other firms that there are others – given that non-state torture is a common feature in those who are traumatised. Today’s decision could potentially affect hundreds of people.

“We are asked for a suspension of the policy until the final outcome of the hearing. We want the current policy to be quashed and requested the immediate release of anyone currently detained [under it]. This decision will potentially protect hundreds of detainees. It really shouldn’t matter when assessing whether a person should be detained, if the perpetrators are state officials or not.”

Rory Dunlop, the Home Office’s representative in court, said that to overturn a policy that had only been in place for two months was “a radical thing to do”.

Theresa Schleicher, acting director of Medical Justice, a charity that works to improve the health of immigration detainees and is involved in this legal challenge, said: “We welcome today’s decision to suspend the narrower definition of torture and to revert to the previous, wider definition. It will mean that more vulnerable torture survivors will be protected from being detained and being harmed by detention.”

The Home Office said: “We have noted the decision to grant interim relief at the procedural hearing. Given this is an ongoing legal case, for which there has yet to be a substantive hearing, we are unable to comment further.”

• The subheading on this article was amended on 22 November 2016 to change a reference to prisons to detention centres.